No Disciplinary Sanction Warranted For Nick Diaz

By Jonathon Tweedale

Nick Diaz's recent post-fight positive test after UFC 143 for marijuana has caused many fight enthusiasts to ask: "Why do they test for marijuana anyway?"

The answer to that question, along with a review of Nevada's applicable regulatory provision, suggests that there is no basis for disciplinary sanction of Mr. Diaz unless he administered or used marijuana immediately prior to or within several hours in advance of his fight.

Cannabinoids as Prohibited Substances

Cannabinoids are prohibited substances for fighters licensed in Nevada by virtue of NAC 467.850(2)(f), which incorporates by reference all prohibited substances on the current Prohibited List published by the World Anti-Doping Agency ("WADA").

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Cannabinoids - specifically, natural (e.g. cannabis, hashish, marijuana) and synthetic delta 9-tetrahydrocannabinol (THC) as well as cannabimimetics - are included on WADA's Prohibited List. The status of cannabinoids as either legal or illegal under applicable criminal law - or, e.g., ‘legal with a doctor's note' - is immaterial. The determinative fact for fight licensing purposes is that cannabinoids are included on WADA's Prohibited List.

Cannabinoids are only prohibited "in competition". WADA expressly permits the use of marijuana and other cannabinoids outside of competition. Nevada is no different. A random, out of competition positive test for marijuana should not engender disciplinary sanction under the NAC's regulations.

More after the jump.

SBN coverage of UFC 143: Diaz vs. Condit

The Regulatory Ambiguity: "Before"

NAC 467.850(1) provides that the administration of or use of any prohibited substance "either before or during a contest or exhibition" is prohibited.

The obvious question is this: how long before is "before", under NAC 467.850(1)? A day? A week?

Media commentators have correctly pointed out that the presence of metabolites in a sample taken on fight night is consistent with the last "administration of or use of" the prohibited substance having been many days if not weeks earlier.

Is the use of marijuana potentially weeks in advance of a fight a violation of NAC 467.850(1)?

(Parenthetically, no similar question exists for organizations that strictly apply WADA's Code, as the Code expressly imposes an irrefutable presumption that an anti-doping violation has occurred wherever a Prohibited Substance or its metabolites are present in an athlete's sample. Nevada has no similar rule in its regulations.)

"Before" - The Fixed Interpretation

One might think that the obvious analog to marijuana is alcohol. The same regulatory provision that prohibits the administration of or use of marijuana also prohibits the administration of or use of alcohol (i.e. NAC 467.850(1)). In the case of each, the prohibition is on using "before or during" the contest or exhibition. If a fighter taking a drink seven days before a contest or exhibition has not used alcohol "before" the contest or exhibition, then we know that "before" denotes a time period of less than seven days. Perhaps it is substantially even less than that - two days, or maybe even 24 hours. If so, then "before" means just that for the purpose of all Prohibited Substances.

One could object as follows: The problem with this interpretation of "before" - where "before" denotes a fixed period of time applicable to all prohibited substances (the "Fixed Interpretation") - is that such interpretation fails in its treatment of prohibited substances that are performance enhancing. If "before" meant a fixed period of time (say, seven days, two days, or perhaps a day), then NAC 467.850(1) would permit fighters administering steroids, amongst other performance enhancers, up to seven/two/one day(s) in advance of a fight. And that is untenable.

The objection is partly misplaced. Steroids and many other performance enhancers are prohibited even out of competition - their use is prohibited at all times (unlike marijuana and alcohol). However, the objection correctly identifies that "before" must mean something different as applied to different prohibited substances, and this undermines the Fixed Interpretation. Also, the Fixed Interpretation is unable to distinguish between the consumption of different quantities of a given prohibited substance.

"Before": The Principled Interpretation

A better, more principled approach involves an examination of the rationale for the inclusion of a substance on the Prohibited List in the first place.

If we understood the rationale for inclusion of a substance on the Prohibited List, then that understanding should guide our understanding of the timing of its use that would justifiably be deemed to constitute an anti-doping violation. I refer to this as the "Principled Interpretation", as it interprets the meaning of the relevant anti-doping regulatory provision in light of its principled underlying rationale.

However, to apply the Principled Interpretation there is a preliminary question that must be answered: why is any substance included on the Prohibited List?

Criteria for Prohibited Substances: Application to Cannabinoids

Article 4.3.1 of WADA's Code provides that WADA is permitted to consider a substance for inclusion on the Prohibited List if WADA determines that a substance meets any two of the following three criteria:

1) the substance has the potential to enhance sport performance;

2) the use of the substance represents an actual or potential health risk to the athlete; and

3) WADA has determined "that the Use of the substance or method violates the spirit of sport described in the Introduction to the Code."

The Principled Interpretation requires that we evaluate how these criteria apply to the class of prohibited substance under consideration - i.e. cannabinoids.

First, as a matter of common sense, we can knock (a) off the list immediately as entirely inapplicable.

Second, does (b) apply? Because WADA expressly permits marijuana use outside of competition, the only "actual or potential health risk to the athlete" engaged by this prohibited substance is "in competition" risk - i.e. an athlete competing under the psychoactive and physiological effects of marijuana. It follows that the rationale for inclusion of (b) in the List only justifies prohibition of cannabinoids immediately before a contest or exhibition.

That leaves the third condition, (c). This criterion is puzzling. On its face, "the spirit of sport" appears to be an empty place-holder, devoid of objective content, included only to serve as a vehicle for WADA to insert a non-evidence-based value judgment.

Does WADA imbue "the spirit of sport" with any semantic content in its Introduction to the Code? WADA's attempts to do so are limited to describing the "spirit of sport" as, alternately:

"what is intrinsically valuable about sport";
"the essence of Olympism";
"how we play true"; and
"the celebration of the human spirit, body and mind".
But this is just purporting to define one empty moralistic expression in terms of other, equally empty moralistic language.

Perhaps one could reasonably say that, regardless of what "the spirit of sport" might mean, it might violate the spirit of sport to use a substance during competition that represents an actual or potential health risk to the athlete. So, by virtue of one and the same underlying fact (the health risk to the athlete competing under influence of a substance with psychoactive and physiological effects), cannabinoids arguably satisfy two out of WADA's three criteria.

Cannabinoid use prohibited only in cases of in-competition psychoactive and physiological effect

The Principled Interpretation dictates the following conclusions:

Cannabinoids are included on the Prohibited List because competing while under the psychoactive and physiological effects of cannabinoids both:
represents an actual or potential health risk to the athlete; and
violates the spirit of sport (in the limited sense noted above); and therefore:
A fighter administers or uses cannabinoids "before" a contest or exhibition, under NAC 467.850(1), only where he or she is under its psychoactive and physiological effects during the contest or exhibition.
Marijuana metabolites are not evidence of an anti-doping violation

If an athletic commission wishes to enforce this rule, then it must tailor a test that will determine whether a violation has actually occurred. As is widely known, urinalysis casts too wide a net to tell us this.

That cannabinoid metabolites are found in a fighter's sample is consistent with the fighter ceasing to use a month before, a week before, or a day in advance of the contest. Heavy users have been documented as testing positive over 46 days after the most recent use. (See, e.g., Ellis GM, Maun MA, Judson BA, et al. Excretion patterns of cannabinoid metabolites after last use in a group of chronic users. Clin Pharmacol Ther 1986;38:572-578; and Smith-Kielland A, Skuterud B, Morland J. Urinary excretion of 11-nor-9-carboxy-delta9-tetrahydrocannabinol and cannabinoids in frequent and infrequent drug users. J Anal Toxicol 1999; 23:323-332.) None of these time periods are instances of use "before or during" the contest - as the psychoactive and physiological effects of marijuana would no longer be in effect.

Accordingly, if the Nevada Athletic Commission's only basis for issuing a complaint against Nick Diaz is metabolites revealed by urinalysis of a sample collected on fight night, then it is unlikely the Commission has sufficient evidence to prove a violation under a Principled Interpretation of its regulations.

Even if the interpretation of Nevada's regulation mandated by the Principled Interpretation is mistaken, the rationale-based analysis is still intact. Any disciplinary action levied against Mr. Diaz would have no rational basis in the principles underlying a defensible anti-doping regime unless there is evidence Mr. Diaz was under the effects of marijuana on fight night.

Regulators and fight sport enthusiasts alike can, of course, hope and expect that Nevada's regulators do not slavishly adhere to their past practices and instead re-evaluate the need to interpret and apply their anti-doping rules in light of the rationale underlying a principled anti-doping regime.

Jonathan Tweedale is a litigation trial lawyer in Vancouver, British Columbia, and a Commissioner with the Vancouver Athletic Commission, an advisory body to the City of Vancouver. The opinions expressed in this article are solely his own and do not necessarily represent the collective opinion of the VAC.

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